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FAMILY LAW 35: Trial court granted plaintiff’s motion for a change of domicile.

This case arises out of plaintiff’s request to move the parties’ children from Michigan to Louisiana. The parties were married, and they had three children together during the marriage. The judgment of divorce stated that both parties shared joint legal and joint physical custody of the children. The judgment further provided that the father would have parenting time three weekends a month. In the summer, father would have parenting time 14 days a month.

Plaintiff, acting in propria persona, filed a motion to change the children’s domicile. She explained that she wished to move to Louisiana with her husband and the three children because she was given the opportunity for good employment and adequate housing for the entire family. Plaintiff asserted that the move would be good for education because Louisiana had great school districts. Defendant opposed the motion.

After holding a hearing in which both plaintiff and defendant testified, the trial court granted plaintiff’s motion.

A motion for a change of domicile essentially requires a four-step approach.

  • First, a trial court must determine whether the moving party has established by a preponderance of the evidence that the factors enumerated in MCL 722.31(4), support a motion for a change of domicile.
  • Second, if the factors support a change in domicile, then the trial court must then determine whether an established custodial environment exists.
  • Third, if an established custodial environment exists, the trial court must then determine whether the change of domicile would modify or alter that established custodial environment.
  • Finally, if, and only if, the trial court finds that a change of domicile would modify or alter the child’s established custodial environment must the trial court determine whether the change in domicile would be in the child’s best interests by considering whether the best-interest factors in MCL 722.23 have been established by clear and convincing evidence.

In this case, the trial court granted plaintiff’s motion for a change of domicile and memorialized this decision in its order regarding change of domicile, dated November 28, 2018. The court found the requested change of domicile will not change the children’s established custodial environment. Additionally, at the January 8, 2019 hearing, the trial court discusses the established custodial environment, and father’s counsel acknowledges that the established custodial environment is with the mother.

The trial court found that the current parenting-time agreement was loosely complied with, but the trial court did not believe that plaintiff had a secret motive to keep the children from defendant. This finding is also supported by plaintiff’s testimony because she offered defendant parenting time for the entire summer and on alternate holidays. She also offered to meet defendant halfway for parenting-time exchanges. Plaintiff stated that she believed that this arrangement would be an improvement to the current practice because defendant often worked on the weekends in which he had the children.

If you are going through a divorce or are separating from the mother or father of your children, it is important to protect your custodial rights.

If the divorce or separation process does not turn out like you thought it would, you may not have the custody, visitation or child support you deserve.

Contact Aldrich Legal Services

REAL ESTATE 40: Tax Tribunal denied petitioner’s claim of a principal residence exemption (PRE).

MCL 211.7cc(2) provides that an owner of property can claim the PRE by filing an affidavit that must state that the property is owned and occupied as a principal residence by that owner of the property on the date that the affidavit is signed and shall state that the owner has not claimed a substantially similar exemption, deduction, or credit on property in another state.

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REAL ESTATE 38: Plaintiff fails to make land contract payments.

The land contract stated that T Company sold real property to plaintiff. The land contract further stated that if plaintiff failed to make a monthly payment, T Company could execute the quitclaim deed, thereby terminating plaintiff’s rights to the real property under the land contract.

CONTRACTS 6: Do you understand the clauses in your Purchase Agreement?

The trial court granted defendants’ motion for summary disposition, concluding that the claims against the realty companies were barred by the valid release contained in the purchase agreement and that the claims against sellers were required to be resolved in arbitration because they fell within the scope of the arbitration clause in the purchase agreement.

DIVORCE 29: Spousal support in gross is non-modifiable, whereas periodic is subject to modification.

As the name implies, periodic spousal support payments are made on a periodic basis. Periodic spousal support payments are subject to any contingency, such as death or remarriage of a spouse, whereas spousal support in gross is paid as a lump sum or a definite sum to be paid in installments. In addition, one major difference between the two types of spousal support is modifiability. Spousal support in gross is non-modifiable, whereas periodic spousal support is subject to modification pursuant to MCL 555.28.1.

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PROBATE 28: Probate court enters a protective order providing support for a community spouse.

A probate court’s consideration of the couple’s circumstances cannot involve an assumption that the institutionalized spouse should receive 100% free medical care under Medicaid or an assumption that a community spouse is entitled to maintain his or her standard of living. Medicaid is a need-based program, and a Medicaid recipient is obligated to contribute to his or her care.

REAL ESTATE 36: Plaintiff argued that her claim was not time-barred because it did not accrue until the grandmother’s death.

Plaintiff’s interest in the subject property is best characterized as a remainder estate, because her right to possession of the property was postponed until the occurrence of a specific contingency, that being the deaths of the grandparents. Plaintiff pursued this action within the 15-year limitation period; accordingly, this action is not barred by MCL 600.5801(4).

LITIGATION 6: The terms of the agreement prevails over the course of performance.

The trial court determined that under the UCC, the express terms of the parties’ agreements prevailed over the course of their performance and course of dealing. Although a course of performance may show that parties have waived a specific contractual term under MCL 440.1303(6), the statute does not similarly provide that a course of dealing may demonstrate waiver.

PROBATE 27: Petitioner filed a petition for mental-health treatment.

In support of the allegations, petitioner attached clinical certificates from a physician and a psychiatrist who observed respondent at the hospital. Both doctors diagnosed respondent with bipolar disorder, determined that she displayed a likelihood of injuring herself and that she did not understand the need for treatment, and recommended a course of treatment that consisted of 60 days of hospitalization and 90 days of outpatient care.

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FAMILY LAW 32: Trial court committed error in failing to address whether there was an established custodial environment.

On appeal, plaintiff argues that the trial court failed to make any findings regarding (1) the child’s established custodial environment, (2) the child’s best interests regarding the grant of primary physical custody to defendant, (3) the child’s best interests with respect to parenting time, and (4) the child’s best interests pertaining to the parties’ dispute over daycare.

PROBATE 25: Daughter removed as personal representative of the estate.

the probate court determined that Daughter J had managed the estate in a manner that promoted her own interests as a beneficiary over the interests of the estate. The probate court found that such management demonstrated mismanagement of the estate and that removal of Daughter J was therefore in the best interests of the estate.

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REAL ESTATE 32: Plaintiffs and defendants executed a second easement.

Plaintiffs requested that the trial court, either through reformation of the First Easement or interpretation of the Second Easement, quiet title in favor of plaintiffs and declare them to be the owners of an easement to access Lake Superior through the ravine on defendants’ property, enjoin defendants from interfering with their use of the easement, and order compensation for damages to the stairs.

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